Decision No. 34-C-A-2021

SUMMARY

[1] Anmoldeep Kaur filed an application with the Canadian Transportation Agency (Agency) against the respondent regarding a pair of missed connections that she experienced on her return travel to Canada.

[2] Ms. Kaur seeks the following compensation:

• CAD 1,000 pursuant to the Air Passenger Protection Regulations, SOR/2019-150 (APPR);
• CAD 1,351.53 for full refund of her flight;
• CAD 172.87 for meal expenses;
• CAD 95 for gas expenses for alternate travel from Montréal, Quebec, to Toronto, Ontario; and
• unspecified medical expenses.

[3] The Agency will address the following issues:

• Did KLM properly apply Delta’s International Passenger Rules and Fares Tariff No. DL-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Delta Airlines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points Throughout the World, NTA(A) No. 304 (Tariff)?
• If KLM did not properly apply the Tariff, what remedy, if any, should be ordered?

[4] The Agency finds that KLM did not properly apply the terms and conditions set out it in Delta’s Tariff by failing to provide Ms. Kaur with a refund for the unused portion of her ticket when she rejected the reprotection offered to her and found her own way home. Therefore, pursuant to section 113.1 of the ATR, the Agency orders KLM:

• to refund Ms. Kaur the residual amount, if any, of the unused portion of the ticket, as per Rule 90(B) of the Tariff;
• to provide Ms. Kaur and the Agency with a detailed explanation of how the amount was calculated; and
• to notify the Agency once the refund for the unused portion of the ticket has been tendered to Ms. Kaur;
• all of which must be done as soon as possible and no later than June 14, 2021.

[5] If Ms. Kaur does not agree with the amount of the refund for the unused portion of the ticket, she must advise the Agency accordingly, no later than June 14, 2021, and the Agency will open pleadings on the matter.

BACKGROUND

[6] On June 22, 2019, Ms. Kaur was scheduled to travel from Delhi, India, to Toronto via Amsterdam, Netherlands, on codeshare tickets marketed by Delta and operated by KLM. Ms. Kaur’s flight from Delhi to Amsterdam was delayed due to a security issue over Pakistani and Iranian airspace.

[7] Since Ms. Kaur was going to miss her connection in Amsterdam due to a four-hour delay, KLM reprotected her from Amsterdam to Toronto as follows:

• Flight No. KL0671/DL9393 Amsterdam to Montréal (scheduled to depart at 3:20 p.m. and arrive at 4:50 p.m.)
• Flight No. AC0423 Montréal to Toronto (scheduled to depart at 6:00 p.m. and arrive at 7:19 p.m.).

[8] After Ms. Kaur arrived in Montréal, she did not clear customs quickly enough to take her connecting flight to Toronto.

[9] Ms. Kaur was not satisfied with the reprotection option offered by KLM in Montréal, so she decided not to take the replacement flight from Montréal to Toronto. Ms. Kaur’s husband drove to Montréal to pick her up and bring her home to Toronto.

PRELIMINARY MATTERS

Tariff application

[10] It is well established that the marketing carrier’s tariff applies in a codeshare agreement. In this case, the flights in the original itinerary were marketed under Delta flight codes. Additionally, the evidence indicates that KLM reprotected Ms. Kaur on a new flight on behalf of Delta from Amsterdam to Montréal, where she missed her connection. This flight from Amsterdam to Montréal was also marketed as a Delta flight, according to the information provided by KLM. As a result, the applicable tariff is Delta’s.

Remedies outside the Agency’s authority

[11] Ms. Kaur seeks compensation for inconvenience in accordance with section 12 of the APPR. However, the Agency does not have authority to order compensation for inconvenience relating to incidents that occurred before December 15, 2019, when that section came into effect. Therefore, the Agency will not consider this issue.

[12] Similarly, in her reply, Ms. Kaur also raised compensation under Regulation  (EC)  No 261/2004 of the European Parliament and of the Council (Regulation (EC) No 261/2004). Regulation (EC) No 261/2004 is not incorporated into the Tariff and the Agency does not have jurisdiction to apply foreign instruments, as indicated in Decision No. 15-C-A-2019 (Heaney v Air Canada). The Agency must exercise its jurisdiction in accordance with the Canada Transportation Act, SC 1996, c 10 (CTA), and its regulations, including the ATR. Passengers who feel they are entitled to compensation under Regulation (EC) No 261/2004 are encouraged to seek recourse through other established mechanisms.

Sensitive personal information

[13] The Agency notes that the Passenger Name Record (PNR) submitted by KLM contains Ms. Kaur’s passport information.

[14] Although neither party requested that the passport information be kept confidential pursuant to section 31 of the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Rules), subsection 5(2) of the Rules allows the Agency to, on its own initiative, do anything that may be done on request under the Rules. Under paragraph 31(5)(a) of the Rules, information that is not relevant can simply be removed from the record.

[15] The Agency generally considers a passport number to be sensitive personal information as its disclosure could lead to harm to an individual, including possible identity theft. Although KLM has not been provided with the opportunity to comment, the Agency finds that it will not be prejudiced by the removal of this information, given that the passport information is not relevant to its arguments, and KLM continues to have access to it. Consequently, the Agency has removed the passport information from the record.

THE LAW AND RELEVANT TARIFF PROVISIONS

[16] Subsection 110(4) of the ATR requires that a carrier operating an international service apply the terms and conditions of carriage set out in its tariff.

[17] If the Agency finds that an air carrier has failed to properly apply its tariff, section  113.1   of the ATR empowers the Agency to direct the air carrier to:

(a)  take the corrective measures that the Agency considers appropriate; and

(b)  pay compensation for any expense incurred by a person adversely affected by its failure to apply the fares, rates, charges or terms and conditions set out in the tariff.

[18] The relevant provisions of Delta’s Tariff are set out in the Appendix.

POSITIONS OF PARTIES AND FINDINGS OF FACT

Ms. Kaur

[19] Ms. Kaur argues that the carrier initially made poor arrangements to reprotect her, even though the closure of Pakistan Airspace, which led to her initial flight delay, was announced in April, three months prior to her flight. She submits that the communication she received regarding the rebooking was confusing. She asks why she was not given a direct flight from Amsterdam to Toronto.

[20] Additionally, she argues that the layover in Montréal was only 1 hour, which was not long enough for her to clear customs and complete her journey to Toronto.

[21] Ms. Kaur claims that she was informed in Montréal that the next flight to Toronto was not departing until the next afternoon, 14 hours later. Ms. Kaur also alleges that KLM declined to provide for meals or hotel accommodation in Montréal and that its personnel were rude to her during a stressful experience, which exacerbated her medical condition and resulted in medical expenses.

[22] Ms. Kaur’s husband drove from Toronto to pick her up in Montréal. Ms. Kaur claims meal and gas expenses in relation to this alternate travel.

KLM

[23] KLM states that Flight No. DL9438 on June 22, 2019, operated by KLM from Delhi to Amsterdam, was delayed due to a diversion because of a security threat caused by war or political instability over parts of the Strait of Hormuz (Iran) and parts of Pakistan Airspace. KLM provided a notice from its website for the date of Ms. Kaur’s travel, referring to a two to four hour delay on impacted flights. As Ms. Kaur was expected to miss her connecting flight in Amsterdam due to the delay, KLM reprotected her on a new flight to Toronto, via Montréal.

[24] KLM submits that the layover in Montréal was within the minimum connecting time. When Ms. Kaur missed her connecting flight to Toronto, KLM once more arranged for a new booking on the first available flight to Toronto, taking place the next morning on WestJet.

[25] In its answer, KLM refers Ms. Kaur to the issuing airline Delta if she wants a refund for the unused portion of her ticket for the flight that she did not take.

[26] KLM notes that the meal and transportation costs were after Ms. Kaur unilaterally renounced the rest of her travel. It also argues that the expenses claimed include an individual, Ms. Kaur’s husband, who was not part of the contract of carriage and did not travel with KLM or Delta.

ANALYSIS AND DETERMINATIONS

Did KLM properly apply the Tariff?

[27] The onus is on the applicant to establish, on a balance of probabilities, that the carrier has failed to properly apply the terms and conditions of carriage set out in its tariff.

[28] The Agency recognizes that Ms. Kaur had a long and difficult experience travelling home from Delhi due to the initial delay she encountered. In the case of a flight delay—regardless of the reason for the delay—Rule 80 of the Tariff requires the carrier to either offer to reprotect a passenger, or if that is not satisfactory, to offer the passenger a refund for the unused value of the ticket. This approach is consistent with the carriers’ obligations under the Convention for the Unification of Certain Rules for International Carriage by Air – Montreal Convention (Montreal Convention), which requires a carrier to take all reasonable steps to avoid damage incurred as a result of a delay. In this case, the mitigating steps taken by KLM include offering to reprotect Ms. Kaur on the next available flight in Amsterdam, as set out in Rule 80(B) of the Tariff, which Ms. Kaur accepted.

[29] While the Agency accepts KLM’s claim that the connection time between flights in Montréal exceeded the minimum connecting time, Ms. Kaur missed the Air Canada connection in Montréal due to the time it took to clear customs. As required by Rule  80(B)  of the Tariff, KLM once more offered to reprotect her on the next available flight, this one operated by another carrier, WestJet.

[30] When Ms. Kaur was not satisfied with the option offered to her by KLM, she decided not to wait for a replacement flight and to find her own way home. In this case, the Agency finds that Ms. Kaur opted for the refund option set out in Rule 80(B) of the Tariff when she decided to find her own way home, and thereby rejected the reprotection option offered by KLM. The carrier therefore should have cancelled the remaining ticket and refunded the unused portion of the ticket in the original form of payment in accordance with Rule 90(B). In this respect, the Agency finds that KLM did not properly apply the terms and conditions set out in the Tariff.

[31] Finally, Rule 80(C)(1) of the Tariff states that the carrier is not liable for damages in the case of a force majeure event. The Agency finds that the security situation over Pakistani and Iranian airspace, which caused the initial delay to Ms. Kaur’s travel, meets the definition of force majeure set out in the Tariff. As a result, KLM was not required under the Tariff or the Montreal Convention to provide or compensate for meals or hotel accommodation.

If KLM did not properly apply the Tariff, what remedy, if any, should be ordered?

[32] According to Rule 80(B) of the Tariff, Ms. Kaur is entitled to a refund for any unused portion of the ticket.

[33] In this case, KLM acknowledges that Ms. Kaur may be eligible for a refund, but refers her to Delta, the original marketing carrier who issued the ticket. However, Article 45 of the Montreal Convention permits the applicant to pursue a claim against either the marketing or operating carrier. As a result, KLM cannot avoid liability for any remaining refund by referring the matter to Delta, the marketing carrier. As the operating carrier, KLM is liable for applying Delta’s Tariff on Delta’s behalf.

[34] Ms. Kaur’s claims that gas expenses were incurred as a result of her voluntary decision to cancel the remainder of her travel. As discussed above, the Tariff does not require KLM to provide for meals or hotel accommodations in this case. The Agency therefore finds that Ms. Kaur is not entitled to gas or meal expenses.

CONCLUSION

[35] The Agency finds that KLM did not properly apply the terms and conditions set out in the Tariff by failing to provide Ms. Kaur with a refund for the unused portion of her ticket when she rejected the reprotection option offered to her and found her own way home.

[36] As a result, the Agency orders KLM to refund Ms. Kaur any unused portion of the ticket and to provide submissions to explain how the amount of the refund was calculated. If Ms. Kaur does not agree with the amount of the refund, she can advise the Agency accordingly and the Agency will open pleadings on the matter.

ORDER

[37] Therefore, pursuant to section 113.1 of the ATR, the Agency orders KLM:

• to refund Ms. Kaur the residual amount, if any, of the unused portion of the ticket, as per Rule 90(B) of the Tariff;
• to provide Ms. Kaur and the Agency with a detailed explanation of how the amount was calculated; and
• to notify the Agency once the refund of the unused portion of the ticket has been tendered to Ms. Kaur;
• all of which must be done as soon as possible and no later than June 14, 2021.

If Ms. Kaur does not agree with the amount of the refund of the unused portion of the ticket, she must advise the Agency accordingly, no later than June 14, 2021, and the Agency will open pleadings on the matter.

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APPENDIX TO DECISION NO. 34-C-A-2021

Delta’s International Passenger Rules and Fares Tariff No. DL-1 Containing Local and Joint Rules, Fares and Charges on Behalf of Delta Airlines, Inc. Applicable to the Transportation of Passengers and Baggage Between Points in the United States/Canada and Points Throughout the World, NTA(A) No. 304

Delta’s Tariff at Rule 55 incorporates the Montreal Convention by reference.

Article 19 of the Montreal Convention sets out the carrier’s liability in the case of a flight delay:

The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.

Delta’s Tariff at Rule 80(B) sets out the carrier’s obligations for reprotection and refunds in the event of a schedule irregularity:

• In the event of flight cancellation, diversion, delays of greater than 90 minutes or delays that will cause a passenger to miss connections, Delta will (at passenger’s request) cancel the remaining ticket and refund the unused portion of the ticket and unused ancillary fees in the original form of payment in accordance with Rule 90(b) of these conditions of carriage. If the passenger does not request a refund and cancellation of the ticket, Delta will transport the passenger to the destination on Delta’s next flight on which seats are available in the class of service originally purchased. At Delta’s sole discretion and if acceptable to the passenger, Delta may arrange for the passenger to travel on another carrier or via ground transportation.…

Rule 80(C)(1) of Delta’s Tariff sets out that the carrier is not liable for a flight cancellation or delay due to a force majeure event as defined in the rule:

Except as provided above, Delta shall have no liability if the flight cancellation, diversion or delay was due to force majeure. As used in this rule, "Force Majeure" means actual, threatened or reported.

(a) Weather conditions or acts of God

(b) Riots, civil unrest, embargoes, war, hostilities or unsettled international conditions

(c) Strikes, work stoppages, slowdowns, lockout, or any other labor-related dispute

(d) Government regulation, demand, directive or requirement

(e) Shortage of labor, fuel or facilities

(f) Any other condition beyond Delta’s control or any fact not reasonably foreseen by Delta

Under Rule 80(C)(2)(b), the passenger is not entitled to hotel accommodation in the case of force majeure.

Rule 90(B) sets out how Delta calculates involuntary refunds:

The amount the carrier will refund upon surrender of the unused portion of the passenger’s ticket pursuant to Rule 25 (REFUSAL TO TRANSPORT – LIMITATIONS OF CARRIER) or Rule 80 (REVISED ROUTINGS, FAILURE TO CARRY AND MISSED CONNECTIONS) will be:

….

(2) If a portion of the ticket has been used and termination/interruption occurs:

(a) At a fare breakpoint – The refund will be an amount equal to the fare paid for the unused transportation from the point of termination/interruption to the destination or next stopover point named on the ticket, or to a point at which transportation is to be resumed.

(b) Within a fare component – The refund will be an amount equal to the carrier’s published one way fare for the same class of service or 50 percent of the published comparable round trip fare, from the point of termination/interruption to the destination or next stopover point named on the ticket, or to the point at which transportation is to be resumed. If the carrier does not publish comparable fares between such points, the refund will be an amount equal to any carrier’s direct one way unrestricted fare, less the same rate of discount that was applied in computing the original fare.

….

Exceptions are listed in Rule 90(B) for some specific routes.